For discussion and debate about the ethics of health care organizations and the wider health system.

Tuesday, September 29, 2009

Rebellion Against the Individual Insurance Mandate

This morning's New York Times reports that legislators in a dozen states are launching a rebellion against the possibility of a mandate that individuals must buy health insurance or pay a penalty. The legislators hope to amend their state constitutions to prohibit any federal requirement that individuals (or employers) must "play or pay."

In 2008 Arizona, a hotbed of radical anti-government sentiment, the electorate almost passed Proposition 101, "The Freedom of Choice in Health Care Act," that would have put the following into the Arizona constitution:

Because all people should have the right to make decisions about their health care, no law shall be passed that restricts a person's freedom of choice of private health care systems or private plans of any type. No law shall interfere with a person's or entity's right to pay directly for lawful medical services, nor shall any law impose a penalty or fine, of any type, for choosing to obtain or decline health care coverage or for participation in any particular health care system or plan.

The vote could hardly have been closer - 920,341 (49.8%) for and 928,452 (50.2%) against. A tweaked version of Proposition 101 will be on the 2010 ballot and may well win this time.

The brain trust behind the rebellion is the American Legislative Exchange Council (ALEC), a 30+ year old organization of conservative state legislators and policy analysts. ALEC's model legislative proposal is only available to members, but the gist of the proposal is can be seen here:

When consumers control the dollars, they make the decisions. On the other hand, a single-payer health system—which forces patients to enroll in a one-size-fits-all plan with rich benefits and weak cost-sharing—will cause spending to skyrocket and policymakers to ration care as a cost-containment measure...Under a socialized medicine scheme, many patients will suffer, and some will die on a waiting list...ALEC's Freedom of Choice in Health Care Act ensures a person's right to pay directly for medical care.

ALEC and the legislators in the twelve mandate-fighting states appear to favor the "consumer-driven" approach to health insurance, in which individuals are asked to do their own rationing by having to spend their own money on health services. I don't know how ALEC proposes to achieve universal coverage without a mandate. The alternative funding mechanism is to tax the better off to pay for the worse off, not a popular conservative approach.

When I first joined the practice at Harvard Community Health Plan, a non profit HMO, in 1975, "community rating" applied, and all employers were charged the same per-worker premium. Over time the payment system shifted to "experience rating," in which employers were charged in accord with the actual cost of providing care for their employees. This meant that employers were penalized for having older workers who were likely to cost more, and for making it possible for workers with chronic illnesses to hold jobs. Now conservative groups like ALEC want to disaggregate the community down to the level of individuals having the "right" to pay for their own care.

Even if a robust federal health law is passed states will continue to be crucial laboratories for reform initiatives. I'm at the opposite end of the political spectrum from ALEC and favor communitarian approaches to managing the health system. But I'd be happy to see an ethically guided state experiment that (a) achieved universal coverage, (b) tracked its results and allowed independent researchers to assess the state's performance, while (c) putting conservative principles into practice. My guess is that the rebellious legislators are better at shouting "fire" (or rather, "socialized medicine") than solving problems on the ground, but rather than trade sound bites it would be better to see if they can make their ideas work in a clinically sound and socially responsible manner.

Conservative critics of health reform emanate sound bites brilliantly. It's time to see if they can walk their talk!

(An op-ed supporting Arizona Proposition 101 by George Will is here. The Resolution that will be on the Arizona ballot in 2010 is here.)

6 comments:

I wonder if some of the resistance to the mandates comes from fear that whatever insurance reforms are enacted, they will not be sufficient to make individual coverage both accessible and affordable.

In that case, if a mandate is enacted, it will pose a Catch-22: either you buy extremely expensive insurance (if you can find it), or you don't or can't, therefore have no insurance, but still have to pay a fine.

I'm sure that for some "mandate resisters" their realistic fear is that the available insurance will be very expensive and will not provide good value for money. But I've always thought of the mandate mechanism as a back door way of avoiding the dreaded political action of raising taxes.

In my view, our society has an ethical obligation to ensure access to health care. The most straightforward way for us to met that obligation would be via taxes. Since the tax system is graduated we would be using it to address the question of what a fair level of contribution is for each individual. As Zeke Emanuel's proposal in "Healthcare, Guaranteed" showed, assuring universal access on a tax supported basis doesn't require the other dreaded political action - a single payer system.

A mandate requirement would definitely pose the Catch-22 you describe. Even for those at 500% (and higher) of the federal poverty level the available coverage is likely to be very expensive relative to income. Individuals may opt to pay the penalty for the "privilige" of being uninsured!

I would like an explanation of the origins of the ethical or moral obligation to provide all with health care. Since all efforts to provide it will involve some form of coercion and the redistribution of wealth, I for one would like a reasoned position on the source, nature and limits of this obligation. I think that this must be a public reason not a sectarian one. In this respect I find Robert Audi's arguments compelling.

I'm afraid I don't know Robert Audi's work. I did a quick Google search and see that he's written quite a lot. What is the gist of his position?

I see two central non-sectarian arguments for the societal obligation to provide access to health care for its members. (1) I agree with the way my colleague Norman Daniels grounds this obligation in the principle of equal opportunity. If all humans are created equal with inalienable rights to life, liberty, and the pursuit of happiness, health is a precondition for exercising those rights, just as free speech is. (2) For me the Kantian view of respect for persons as a primary moral stance entails a societal obligation for society to act as the Samaratan did. We can't claim to respect our fellow humans and at the same time allow them to suffer from major treatable impairments.

The question of how much health care we owe to members of our society and the relative investments we will make in health care, education, national security, and other fundamental goods, requires a fair deliberative political process to answer. I don't think ethical principles will take us to that level of policy precision.

But in my view ethical considerations forbid us from treating health care as a market commodity - you can get it if you have enough money and you can't if you don't.

In an earlier response to my comment, Jim asked for a clarification of Robert Audi’s position, to which I referred.

As I understand Audi, who could be taken as a good representative of the classical “liberalism as neutrality” position, government must be neutral relative to contending versions of the good. This means that no set of values, no ideology and no religious view should be seen as “trumping” any other perspective. All participants in deliberation deserve to be given reasons that they can understand and evaluate on terms that are not exclusive to, or comprehensible only within, a given life world or world view. This requires a public justification accessible to all. This is critically important when policy options involving coercion are being deliberated and when legislated policies entail coercion on individuals who do not agree with the values being promoted. See his Religious Commitment and Secular Reason

This view is often in conflict, of course, with the ideologically or religiously motivated view that truth ought to prevail and that those who hold the true are entitled to carry the day. In between is the view of open deliberation with all perspectives taken into account. Chris Eberle is a good example here. See his Religious Conviction in Liberal Politics

In terms of your non-sectarian perspective, I think that this is a very tricky business. I recognize “equal opportunity” as an important value, as do you and Norman Daniels. Yet I wonder if we are on a slippery slope when we begin to equate a right to health, derived from the concept of equal opportunity, with a right of free speech. The latter is clearly and directly related to the ordinary operations of a democratic process in the sense that we cannot govern ourselves as a free people unless we can speak our minds in public. The founders, such as George Mason, clearly understood this and pushed for a bill of rights focused on those behaviors whose commission were essential for public participation as well as on those prohibitions of government action that would restrict that participation.

I think that we need to be careful when we attempt to use inalienable rights in this context. My reading of American history suggests that the founders who used this rights language treated capabilities as givens rather than as variables to be enhanced. Unless we are candid on our expansion of the meaning of the concept for our modern day purposes of expanding capabilities, we run the risk of proposing policies that the those who gave us the core concept would not support. If we are expanding the applicability of the concept we need to be candid in our remarks.

Thank you for this very thoughtful comment and for the explication of Robert Audi's views.

I think of health care more on the analogy to education than to free speech. As a body politic we have concluded that a socially responsible state owes the opportunity for basic education to its citizens. Without literacy and numeracy we can't exercise what the founding fathers thought of as our fundamental rights.

In my view, health care is similar. Curing pneumonia or fixing a fracture isn't enhancement - it's sn intervention that gets us back to the starting block for exercising those same fundamental rights.

I prefer to conceptualize health care as a societal obligation, not a right that individuals can claim. Any such "right" would have to be relative to the societal circumstances - especially its level of wealth and the competing demands on its resources. A right would be more independent of social circumstances.

About Me

I've been in health care for almost 50 years -- as psychiatrist, medical director, teacher/researcher, consultant, leader of the ethics program at a not-for-profit health plan, and patient. I'm a clinical professor in the departments of Population Medicine and Psychiatry at Harvard Medical School. With colleagues I've written two books about health system ethics: "Setting Limits Fairly: Learning to Share Resources for Health," and "No Margin, No Mission: Health-Care Organizations and the Quest for Ethical Excellence." I've had my Medicare card since 2004.

About the blog

Medical ethics has traditionally focused on the individual patient, the individual doctor, and the patient-doctor relationship. But today most care occurs in organizational settings – group practices, HMOs, VA and more. Insurers and other third parties have a huge influence on the exam room. Medicare shapes care for the elderly and disabled. Medicaid does the same for the poor. Hospital cultures and policies affect what sick patients experience, for both better and worse.

All this means that the ethical quality of health care is profoundly influenced by the ethics of organizations. We can’t have ethical health care without ethical organizations.

Organizational ethics is what this blog is all about. I discuss how organizations engage with the ethical dimensions of their work. I look for approaches we can learn from, not simply to wring my hands and rant. I hope the blog stimulates discussion and debate, and encourage readers to present their own perspectives and suggest topics for postings.